Frequently Asked Questions About DUI Defense:
One of my first responsibilities as a dui defense lawyer is to explain how a drunk driving offense is labeled in Indiana. People legitimately get confused with the abbreviations, “DUI,” (Driving Under The Influence) “DWI,” (Driving While Intoxicated) & “OWI,” (Operating While Intoxicated) and often want to know the legal difference between the terms. The simple answer is that there is no legal difference, as all refer to the same offenses for Operating While Intoxicated in Indiana. Although the most commonly utilized term for drunk driving in Indiana is “DUI,” I have attempted to use the terms interchangeably whenever possible.
What Are The Consequences Of a DUI Conviction?
Indiana has recently experienced one of the biggest overhauls of sentencing laws in quite some time. As a result, it is imperative that the attorney you consult with fully comprehends the latest revisions to the Indiana code specifically as related to potential drunk driving sanctions within your specific factual circumstances. With that said, I offer the following and extremely abbreviated information as to the recent revisions:
First offense drunk driving convictions (without causing bodily injury or death, or without a minor in vehicle) carry a maximum penalty of one year in jail/five thousand dollars in fines and up to a one year drivers license suspension. If a fact pattern allows for a lower level drunk driving consideration, it is possible to limit potential criminal penalty to two months in jail with a cap at a five hundred dollar fine. Further, a license suspension can be limited to a cap of two months in such special circumstances.
If one has a prior drunk driving conviction within five years, felony rules apply in Indiana. For a second offense in five years or special circumstances such as a minor in vehicle or causing serious bodily injury within a first offense drunk driving conviction, one can face imprisonment for up to two and one half years. For elevated felonies involving death one can be punishable by up to twelve years imprisonment. Although a second offense dui beyond five years is a misdemeanor, a minimum of five days in jail must be served to the maximum of one year incarceration for a misdemeanor sentence.
Habitual offenders with three convictions or more for drunk driving face criminal incarceration of up to eight years on top of whatever criminal charge one is facing.
License suspensions in such instances can be imposed for a minimum of one year to a maximum based upon the criminal length of incarceration able to be imposed for the offense. For example, since a level 6 felony (prior within five years with no special circumstances) is eligible for incarceration for up to two and one half years, a corresponding license suspension cannot be more than two and one half years.
New laws dictate that if an individual has a prior drunk driving conviction, no matter when the prior conviction may have occurred, (thirty years ago, doesn’t matter) a license suspension for a minimum of one year must be imposed. Evolving are specialized privileges for work in such circumstances, However, whether courts will allow for such licenses and under what circumstances will depend upon the county and court.
If one has refused a breath test, an individual is not eligible for consideration for above referenced special driving privileges. Further, one who has been found to have refused a breath test must have a license suspended for a minimum of one year consecutive to the court ordered license suspension. The refusal suspension will become an additional two year license suspension if the individual has a prior drunk driving conviction.
All felonies in Indiana carry a maximum fine of ten thousand dollars.
Please let me stress once again that the above referenced information is but a generalized recitation of present drunk driving ramifications in Indiana. To more comprehensively and conclusively establish all of the potential punishment someone is subject to, one must consult with an attorney based upon the specific potential charges and fact pattern one is facing.
Does a Vehicle Have to Move For a Conviction for DUI?
You can be arrested for DUI in Hamilton County without your vehicle in motion. If one is in operation over a car with the engine on or can be shown through circumstantial evidence to have arrived at a location while intoxicated, a person can, in fact be legally convicted of Operating a Motor Vehicle While Intoxicated.
How Do Police Detect DUI Impairment?
The motivation for county police officers to stop and question those suspected of drunk driving is strong. Although guidelines have been imposed by the National Highway Safety Administration (NHTSA) as to valid grounds for police stops in DUI cases, arguably anything and everything can and has been suggested as a basis for a traffic infraction and subsequent police questioning.
Common sense criteria for a traffic stop as enunciated by the National Highway Safety Administration (NHTSA), includes, but is not limited to: moving too close behind a vehicle, turns of wide radius, braking erratically, drifting, delayed reaction to traffic orders, headlights off, weaving, almost striking another vehicle, etc. In practice, such observations can be so widely interpreted as to give dui officers wide latitude in stopping as a pretext for an investigation.
On the rise in Hamilton County is the use of field sobriety checkpoints which are randomly erected stop points legally sanctioned that allow police in Hamilton County to stop and question motorists in search of impaired drivers. Such checkpoints are especially significant because they allow drivers to be stopped and questioned without probable cause to believe that any traffic violation has been committed.
Once stopped either due to the commission of an alleged traffic violation or sobriety checkpoint, a police investigator can ask questions that the courts view as routine. For example, name, where you live, birth information, etc. Inevitably, the dui officer will request your drivers license and registration. To some officers, no matter the way you retrieve and hand over the license, an eventually filed probable cause affidavit asserting probable cause for the arrest is likely to state that the suspected drunk driver fumbled with the wallet.
He or she will then usually ask if one has been drinking. Say yes and an officer will almost always have the keen ability to smell the odor of alcohol on your breath and check that as another element of probable cause within an investigation. In such a circumstance, although easier said than done, a suspected drunk driver would be best served to say nothing in response to such an inquiry.
Do I Have the Right To Talk To a Lawyer Prior To Taking a Field Sobriety Test?
The right to speak to an attorney does not attach until a person is formally placed under arrest or put “in custody.” Field sobriety testing is considered “non testimonial” in nature. In other words such testing is observing what you do as opposed to what you say. Because of this, such testing does not fall within Miranda and the right to consult with an attorney.
Should I Perform Field Sobriety Tests If Asked?
A suspected drunk driver in Indiana is not obligated to submit to sobriety testing. As opposed to refusing to submit to a breath test or suffer an ordered license suspension independently of a dui conviction, a seasoned defense lawyer might state that is not always a bad idea to refuse to take a sobriety test for one determined to go to trial. Not taking such tests can often deprive the assigned prosecutor of potentially key evidence to be used against a suspected drunk driver. In many instances one can explain such a refusal based upon physical limitation or other reason within the unique circumstances of the dui arrest in question.
When My Vehicle Has Been Stopped, What Are Police Looking For To Justify A DUI Arrest?
When charged with a dui, one should expect to find a legal excuse called “probable cause,” with which an officer will put forth justifying why the officer had the suspect submit to both breath and field sobriety testing. As discussed above, fumbling for a wallet and/smell of beer or liquor are likely factors a dui officer will often utilize. Such factors are particularly helpful to an investigating dui officer because such observations do not require a request to exit the vehicle.
Consequently, how you act within the driver’s compartment of a vehicle when questioned, can play an important role in whether you will be asked to exit the vehicle. As a result, be cooperative with as little physical movement as possible. If one is able, retrieve license and registration from glove compartment before being observed, as even a sober individual can appear clumsy rummaging through a glove compartment.
If circumstances are such that you have been asked to exit the vehicle where you believe you will be above the legal limit of .08 you are now more vulnerable with full body movements and appearance exposed. It is at this stage that in open view, an officer is likely to focus on soiled or disheveled clothing, body lean and/or swaying, pulling oneself from a vehicle, using vehicle for support, bad attitude and/or flushed face as a basis upon which to follow through with probable cause for further breath and field sobriety testing.
What Are The Consequences For One Who Will Not Submit To Breath Testing For Intoxication?
In most cases it is not advisable to decline a breath test for intoxication. Refusing to submit to chemical breath testing compels a minimum 1 year driver’s license suspension, no matter the outcome within the underlying dui prosecution. (a 2 year minimum if one is found to have refused with a prior dui conviction) However, someone who is at risk for significant jail/prison time due to multiple convictions might reasonably determine that a refusal is warranted where a license suspension is a lesser priority.
The Police Officer Says I Failed a Breath & Sobriety Test For Intoxication, Is There Hope?
Yes. The ability of a prosecuting attorney to secure a conviction in a drunk driving case has nothing to do with your belief that you are guilty or the police officer’s assertion that you tested above the legal limit of .08. Rather, guilt or innocence within a prosecution will often rest on the admissibility of the breath or blood test results and field sobriety testing the prosecution will attempt to introduce. Owi attorneys must have more than mere legal training to be successful. Success in defeating dui prosecutions is based upon being well versed on all certifications and training required of officers and breath test equipment to be admissible in court under standards set by the Indiana Department of Toxicology. Further, your defense lawyer must have a working knowledge of the National Highway Traffic Safety Administration’s (NHTSA) manuals on approved methods of field sobriety testing; knowledge that will rival or surpass that of the arresting field officer.
When it comes to the validity of an Indiana OWI arrest, what happens within three hours of a police investigation is critical as to whether dui charges against you or a loved one will be able to be proven in a court of law. This, “three hour window” for a police investigation refers to the time frame within which the Indiana Department of Toxicology has established for the admissibility of alcohol breath test results. In other words, a police officer with probable cause to believe one has been drinking and driving must administer a certified alcohol breath test within 3 hours of the time one is suspected of operating a motor vehicle.
In Indiana, two factors are often the central issue as to the strengths or weaknesses of of a potential owi prosecution; 1) Breath Test or Blood Test Results and 2) Performance of Field Sobriety Tests. Unlike other forms of evidence within an Indiana criminal case, the admissibility of both breath test results and field sobriety performance assessments are not dependent on whether an officer has read you your rights in accordance with Miranda warnings. This is so because in the State of Indiana, breath or blood test results as well as performance of field sobriety tests are considered, “non testimonial.” In other words evidence gathered and based upon not what one says, but what one does. Therefore attacking both the breath or blood draw results and field sobriety testing procedures of an investigating dui officer can often become a central component in successfully defending against an Indiana owi prosecution.
There are prescribed requirements mandated by the Indiana Department of Toxicology governing how breath tests must be conducted. Scrutinizing how such tests were performed by law enforcement is of monumental importance to a qualified owi defense lawyer. Potential depositions & cross examination of all officers, procuring court orders for upkeep records of breath test equipment and acquisition of all certifications pertaining to the admissibility of breath test readouts are often an essential focus of capable owi lawyers. To provide but one example, in the State of Indiana, law enforcement who performs breath testing must be certified to do so once every two years. As for the machinery in question, all applicable breath test equipment must be certified and re certified once every one hundred eighty (180) days.
Should the test results withstand legal challenge, focus must be turned to the records of the breath test equipment be it a Datamaster, Intoxilzer 5000 or any other legally permitted breath testing apparatus. In Indiana, if the certifications are in order, the results are otherwise legally admissible evidence in a court of law. As a result, your defense attorney would need to focus on the time, place and manner with which the breath test was conducted as the credibility of the results would become an issue of fact for judge or jury. In impeaching the credibility of any breath test findings, both the records of the machinery involved as well as the manner with which the officer conducted the breath test must be investigated thoroughly. It is in this area where an owi attorney in Indiana must be aware of all recommended procedures for police investigators to utilize in accordance with NHTSA training manuals to validate and have confidence in the results. As this website is geared for one needing an Indiana drunk driving attorney and not a toxicologist, I will spare further information in this area unless requested.
Where blood draw evidence is the central component of the state’s case, the experienced owi lawyer will need to thoroughly examine “chain of custody” issues that may effect whether such blood evidence can be admissible in court. How did the lab store the vials? How were the vials treated and properly maintained so as to limit contaminants that can alter the reliability of the results? Who had access to the vial(s) in question? These are just some basic grounds for investigation that can potentially weaken or even allow a dui prosecution to be dismissed through proper pre trial preparation.
A second prong of attack for a capable defense attorney is in the area of how field sobriety testing was conducted. In combination, it is both the breath test results and field sobriety test results of an arresting officer that are the heart of any owi prosecution. Unlike breath test evidence which will be an objective form of evidence legally admissible in a court of law if the above referenced certifications have been authenticated, field sobriety testing is a wholly subjective undertaking in the eyes of the experienced defense lawyer.
It is not uncommon for a police officer not exclusively trained in the field of drunk driving detection to devise his or her own methods to assess impairment. Finger to nose, backward count or any other testing procedure decided on the fly can be a gift the inexperienced police officer can provide an experienced defense lawyer. Why? Because there are only three approved methods of field sobriety testing deemed credible for the detection of OWI in Indiana and all states. Within the NHTSA guidelines, it is clearly stated that the proper training of officers includes learning and subjecting drunk driving suspects to only three approved methods of field sobriety testing; the walk and turn test, the one leg stand and gaze nystagmus observation. Field sobriety testing results not based upon one of these three disciplines should be thoroughly discredited by a qualified drunk driving defense attorney.
Inevitably, thorough cross examination of an instructing police officer’s analysis of a suspected drunk driver is bound to have significant flaws. In my experience as a defense attorney, the issue will not be whether the officer’s conduct in instructing and observing a given field sobriety test was flawed. The question is how flawed. Should either blood or breath test evidence be subject to exclusion, a candid assessment of this issue must be made before trial is warranted.
The Arresting Officer Failed to Read Me My “Miranda” Rights. Can My Criminal Case Be Thrown Out?
Not within the context of a dui case. The police officer is required to give a Miranda warning after you are arrested. However, not only are the performance of field sobriety tests not covered under Miranda as previously discussed, but often law enforcement will often delay an arrest decision to allow you to make unsolicited statements against one’s interest.
Assuming that one can prove that Miranda warnings were not given after a DUI arrest and interrogation, an incriminating statement in question, as opposed to field sobriety testing or bac test results could potentially be excluded from consideration. For this reason it is important for one suspected of dui in Indiana to recognize that an excluded utterance does not allow for a case on its own to be thrown out of court. This is so because within dui prosecutions breath results and performance of sobriety tests are considered “non testimonial” evidence. As a result, such evidence can be introduced independently of any utterance excluded by Miranda.
More significant within the context of a dui investigation is information as to whether law enforcement failed to inform one detained for a dui of “implied consent” law in Indiana. As formerly discussed, “implied consent” is a driver’s responsibility to submit to breath testing with the reprecussions of refusing such a test clearly stated. If there is question as to whether an officer read the implied consent law or the proper manner in which the law was communicated, we may be able to more positively assault the circumstances behind the asserted refusal and other relevant mistakes made by law enforcement.
After My DUI Arrest The Officer Took My Driver’s License. When Can I Legally Drive In Indiana?
Following a dui arrest, the arresting officer or another in law enforcement should present the arrested driver what is often called a “pink slip,” which in effect, is a flimsy pink paper license to present as a temporary drivers license until further notice.
In Indiana, innocent until proven guilty is not applicable to the privlige of operating a motor vehicle. As the right to drive is dictated by the rules of the Indiana Bureau of Motor Vehicles, (BMV) the right to suspend the license by the BMV is not considered a “criminal” punishment but an “administrative” suspension of the bureau.
As a result, once mere probable cause has been found by a judge within Initial Hearing court that a defendant has either failed a chemical breath test for intoxication by testing at or above .08 or has refused to submit to such a test, one’s driving priviliges will be suspended by the Bureau. Based upon the bureau’s administrative rules, this suspension will last for one hundred eighty days (180) upon an alleged test above .08, one year upon an alleged refusal or until further notice of the court. To the point: One charged with dui in Indiana will likely have his or her license suspended while the prosecution is pending.